E-Discovery: Do you know your metadata from your active data?
Ontario’s Rules of Civil Procedure mandate that in civil litigation, one must disclose electronic data (see the definition of “document” and “electronic” in Rule 1.03). However, there is very little guidance in the Rules or the case law about exactly how to disclose electronic data.
In today’s technology age, where the majority of our communications are via e-mail and not paper documents, electronic or e-discovery has become increasingly important. We’ve seen the importance of e-discovery in complex commercial litigation. Yet, it can be important and useful even in the context of less complex lawsuits, such as wrongful dismissal claims where e-mails can help form an employer’s case against an ex-employee.
It seems that many in the legal profession are unfamiliar with their clients’ obligations to preserve and produce electronic documents, and with the technology available to retrieve, search and produce such documents. In response to this deficiency, the Ontario Bar Association (OBA) recently released their Guidelines for the Discovery of Electronic Documents. The Guidelines address the preservation, retrieval, exchange and production of documents from electronic sources in electronic form. The Guidelines also explain important terminology relevant to e-discovery. For example, “metadata” is electronic information recorded about a particular document, such as its format and how, when and by whom it was created, saved or modified. “Active data” is data that is currently used in day-to-day operations.
Is e-discovery relevant to estate litigation? I believe that, with time, it will become more relevant. More and more people are keeping electronic records of all kinds of information, from financial transactions to diary-type entries concerning family relationships. For example, I learned of a situation in which a beneficiary believed that a testator had kept detailed electronic records during her lifetime of cash loans made to family members. The family members denied the existence of the loans and the electronic evidence of such loans appeared to have been deleted. Efforts were made to recover the deleted information.
E-discovery can form the basis of successful litigation, including Will challenges. The OBA’s e-discovery guidelines can help all lawyers cope with this new way to litigate.
Have a great day!
Bianca La Neve
In today’s technology age, where the majority of our communications are via e-mail and not paper documents, electronic or e-discovery has become increasingly important. We’ve seen the importance of e-discovery in complex commercial litigation. Yet, it can be important and useful even in the context of less complex lawsuits, such as wrongful dismissal claims where e-mails can help form an employer’s case against an ex-employee.
It seems that many in the legal profession are unfamiliar with their clients’ obligations to preserve and produce electronic documents, and with the technology available to retrieve, search and produce such documents. In response to this deficiency, the Ontario Bar Association (OBA) recently released their Guidelines for the Discovery of Electronic Documents. The Guidelines address the preservation, retrieval, exchange and production of documents from electronic sources in electronic form. The Guidelines also explain important terminology relevant to e-discovery. For example, “metadata” is electronic information recorded about a particular document, such as its format and how, when and by whom it was created, saved or modified. “Active data” is data that is currently used in day-to-day operations.
Is e-discovery relevant to estate litigation? I believe that, with time, it will become more relevant. More and more people are keeping electronic records of all kinds of information, from financial transactions to diary-type entries concerning family relationships. For example, I learned of a situation in which a beneficiary believed that a testator had kept detailed electronic records during her lifetime of cash loans made to family members. The family members denied the existence of the loans and the electronic evidence of such loans appeared to have been deleted. Efforts were made to recover the deleted information.
E-discovery can form the basis of successful litigation, including Will challenges. The OBA’s e-discovery guidelines can help all lawyers cope with this new way to litigate.
Have a great day!
Bianca La Neve
